DPP v M.T.
|Ní Raifeartaigh J.
|21 March 2023
| IECA 65
|Court of Appeal (Ireland)
|Bill Number: DUDP0067/2018
 IECA 65
Ní Raifeartaigh J.
Bill Number: DUDP0067/2018
Appeal Number.: CCA 0T 0119/2021
THE COURT OF APPEAL
Judgment of the Court delivered by Ní Raifeartaigh J. on the 21 st day of March, 2023
. This is a case in which the contentious issue relates to the cross-examination of a child complainant in a sexual offence trial in circumstances where 4 1/2 years elapsed between the video recording of the child's testimony (when she was aged 6) and the cross-examination at the trial at which the appellant was convicted (when she was aged 11). The appellant was convicted of the sole count of sexual assault at this trial and sentenced to four years imprisonment. The child in this case frankly conceded in cross-examination during the trial that she had little memory of the incident which was the subject of the charge and was relying upon what she had seen in the video-recording of her interview. The questions arising are whether in those circumstances the appellant could exercise his lawful entitlement to cross-examine, whether the child's evidence should have been left to the jury, and whether the trial was fair.
. The issue so described is deceptively simple. The case raises fundamental questions about the exercise of an accused person's right to cross-examine in circumstances involving a young child and where there is a significant delay between the making of the video recording of the child's interview and the trial; a situation that unfortunately arises relatively frequently in this jurisdiction. Two of the key facts in the present case are the period of time between video-recording and trial (4 1/2 years) and the age of the child (6 at the time of the alleged incident, 11 at the time of the trial).
. The Irish criminal justice system has in recent years made some progress in its efforts to ensure that child witnesses are treated fairly and appropriately at all stages of the process from complaint to trial. It was felt that in the past, pre-trial and trial practices were such that children were unable to give what is described in our neighbouring jurisdiction as their “best evidence”. Various measures were introduced by legislation as far back as 1992, but some have only become operative in practical terms in relatively recent years. One of these measures is that of video recording an interview with a child before the trial, and subsequently playing it at trial, effectively as a substituted evidence in chief, pursuant to s.16(1)(b) of the Criminal Evidence Act 1992. The intention behind this measure was to capture the child's evidence while still fresh and thereby achieve a greater balance as between the position of the child and the rights of the accused person. However, the question posed in this case is whether, in the particular circumstances arising, the conviction of the appellant suggests that the balance tipped away too far from the protection of the rights of an accused person and deprived him of a fair trial.
. While the case does concern the issue of cross-examination of a child witness, it should be noted what the case is not about. It does not concern the issue of requiring counsel to tailor their cross-examination of a child to the age and understanding of the specific child, or whether the trial judge unfairly constrained the ability of counsel to cross-examine the child, or anything connected with “ground rules” hearings. Nor does it concern the competence of the child to give evidence in the sense of whether, in view of her age and understanding, she would have been capable of giving an intelligible account of events at the time of the interview and/or the trial. The question raised in this case is specific: it is whether, in view of the child's concession that she had little memory of the incident in question, the appellant's ability to cross-examine was so impaired as to be meaningless and that a fair trial could therefore not be achieved.
. We will refer to the child complainant in this case by the initial S. Further details will be set out below, but in essence the allegation was that the appellant sexually assaulted S while she was in a house playing with his daughter, D. The house was across the road from the complainant's own home. D lived in that house with her mother, and the appellant was the partner of the latter.
. The date of the alleged incident was the 1st October 2016, the day of an All-Ireland football final replay between Dublin and Mayo. The next day, the 2 nd October 2016, S told her mother that while she was at D's house the previous day, the appellant had touched her in a way that amounted to a sexual assault. Obviously those words were not used and the description was in the language of a six-year old child. Her mother contacted the child's father, who arrived at the house, and then the Gardaí, who arrived promptly. The Gardaí considered that since the complainant was a child, it would not be appropriate to engage any further with her on that date, and that an arrangement should be made for a child to interviewed by a specialist interviewer. Meanwhile they called into the appellant in the house across the road and informed him of the general nature of the allegation. The appellant went voluntarily with them to the Garda station and voluntarily submitted to a cautioned interview. He gave a detailed account of his movements the previous day and denied the allegation. Further details will be given below.
. In October or November 2016 (the precise date is uncertain), two specialist interviewers attended at the child's home. No notes of this meeting were made or kept. This was described as a “clarification meeting”, terminology which has apparently become common in this type of case to describe the first meeting of the Gardaí with the complainant. The fact of this meeting was not known to the appellant or his legal team prior to the first trial. (As will be seen, there were three trials: the jury were discharged in the first trial by reason of a failure to disclose the fact of, or any notes concerning, the first clarification meeting referred to; the second trial resulted in a jury discharge because of the pandemic; and the third trial resulted in the conviction of the appellant.)
. On 10 th December 2016, two different specialist interviewers attended at the child's home. The only note taken on that occasion was that the child said: “ He was rubbing my leg. He touched me there, at my privates”. On 11 th December 2016, over two months after the report to the Gardaí, the child was formally interviewed by the latter team of specialist interviewers and this was video recorded.
. On the 2 nd January 2017, the appellant was arrested. He was detained and interviewed, and gave an account of the day in question in broadly similar terms to that given by him to the Gardaí on the day after the alleged incident.
. The file was sent to the DPP and directions to charge the appellant were received in late 2017. The Court is not aware of the precise date upon which the file was sent to that office nor, therefore, of the precise period from that date to the receipt of directions from the DPP's office. Nor is the Court aware of the date of charge or dates in the District Court. However, it may be noted that over a year had therefore elapsed between the alleged incident and the direction to charge even though the file cannot have been unduly complex, involving as it did a single allegation by one child.
. The cases appears to have come into the Circuit Criminal Court list on 2 nd February 2018 and a trial date was fixed for 29 th October 2019. This first trial date was more than two years after the alleged incident.
. The first trial started on 29 th October 2019. The jury was discharged on the second day by reason of the absence of disclosure relating to the clarification meeting, already referred to. Statements were made by the two Gardaí in question, dated 21 st November 2019, in which both stated that S made no disclosures at that first clarification meeting.
. The next trial date fixed was the 5 th May 2020, some seven months later. However, in February 2020 an application was made on behalf of the appellant that the May trial date be postponed because a different trial involving him (concerning the death of his father) had received some media publicity. This application was acceded to and the trial was ultimately fixed for 30 th November 2020.
. The second trial started on the 20 th December 2020: it may be noted that this was approximately 14 months after the first trial, and some 4 years and 2 months after the alleged incident. The video-recording of the child was played to the jury and she was cross-examined. However, the jury was discharged on the fifth day of this trial due to the appellant having been in close contact with Coronavirus.
. The third trial started on 4 th May 2021, some five months after the previous trial, and some 4 1/2 years after the alleged incident and the videorecording, and ran to its conclusion on 11 th May 2021, when the appellant was convicted of the single count of sexual assault by a unanimous verdict.
. Section 16 of the Criminal Evidence Act 1992 provides for the recording and subsequent playing to the jury of Garda interviews with children. It provides as follows:-
16.(1) Subject to subsection (2)—
(b) a videorecording of any statement made by a person under 14 years of age (being a person in respect of whom such an offence is alleged to have been committed) during an interview with a member of the Garda Síochána or any other person who is competent for the purpose, shall...
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